Couture: Reconsidering the Spousal Incompetency Rule?

On Friday, June 15th, the Supreme Court (“SCC”) rendered a controversial split decision regarding the admissibility of out-of-court, hearsay statements from a criminally accused’s spouse. Upholding the finding of the B.C. Court of Appeal, the SCC’s 5-4 decision in R v Couture, 2007 SCC 28 [Couture] , dismissed the Crown’s appeal and ordered a new trial for David Couture, a man sentenced to life in prison without the possibility of parole for sixteen years.

In July of 2003 David Couture had been convicted of two counts of second degree murder. The victims were Couture’s former live-in girlfriend, Darlinda Lee Ritchey and her friend, Karen Ann Baker, both of whom went missing in 1986. Owing to a lack of forensic evidence and eyewitness testimony, the convictions were based in large part on two out-of-court statements made by Couture’s wife, Darlene, to police in 1997.

In 1989, before becoming romantically involved with and eventually marrying Darlene, the accused had spent time in a British Columbia prison on unrelated charges. At that time, Darlene had been working as the prison’s volunteer Christian counsellor and Couture had allegedly made a series of incriminating statements implicating himself in the murders of Ritchey and Baker.

In 1997, while living estranged from her husband, Darlene volunteered two statements to police regarding Couture’s admitted involvement in the 1986 murders. The first statement was audio recorded, the second on video. Neither statement, however, was given under oath. The couple quickly reconciled and, at the time of trial, their marriage was fully valid and subsisting.

At each level of judicial contemplation, although in varying degrees, the nature of Mrs. Couture’s statements to police were complicated by virtue of the relationship in Canadian criminal law between rules concerning hearsay evidence and the common law spousal incompetency rule. Briefly put, the spousal incompetency rule is based on the rather common sense consideration that forcing one spouse to testify against another could have devastating effects upon the harmony of their marriage. Accordingly, at common law a spouse is deemed an incompetent witness in the criminal proceedings of their partner unless the charges involve the life, liberty or health of the witness spouse. Owing to the spousal incompetency rule, Mrs. Couture could neither be called as a courtroom witness, nor could she be cross-examined regarding her statements to police. Her statements were thus hearsay and the legal issue became one of admissibility.

Yet, while on account of the spousal incompetency rule Mrs. Couture’s statements were hearsay, they were nonetheless admitted at trial because they were deemed to have met the separate requirements of ‘necessity’ and threshold ‘reliability’ which constitute the principled exception to the hearsay rule. Whether accurate or not, it is commonly believed that these two requirements function to minimize the dangers associated with accepting the evidence of an out-of-court declarant.

In order to justify the admissibility of Darlene Couture’s statements, the trial judge relied heavily upon the SCC’s 2006 decision in R v Hawkins, [1996] 3 SCR 1043 [Hawkins]. In Hawkins, a case concerning a police officer charged with obstructing justice and corruptly accepting money, it was held that a spouse’s hearsay statements could be admitted according to the exception to the hearsay rule. The B.C. Court of Appeal (“BCCA”), however, did not care for the trial judge’s analogy to Hawkins, recognizing a number of key differences between the cases. In the words of Justice Southin, speaking for an unanimous BCCA at para. 14:

“There are some points of difference between this case and R. v. Hawkins: first, in R. v. Hawkins, the hearsay admitted was a transcript of evidence given under oath; second, that witness had been cross-examined; and, third, the marriage took place after the evidence was given. Here the marriage took place before the statements were given to the police.”

At the SCC, the majority (consisting of McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ) found that the admission of Darlene Couture’s statements under the principled exception of hearsay would seriously undermine the spousal incompetency rule and its objectives. This, of course, stands in contrast with the SCC’s decision in Hawkins. Thus, following the B.C. appeal court, the majority likewise found ample reasons to distinguish Hawkins. Speaking for the majority, Justice Charron declared at para. 70:

“Although the Court of Appeal did not provide much analysis in support of its conclusion, it is implicit that it was of the view that the operation of the principled approach to hearsay in the circumstances of this case would undermine the common law rule of spousal incompetency. In my view, the Court of Appeal was correct to distinguish Hawkins.”

What is more, Charron J. clarified that there exists a judicial imperative in any proceeding to keep an inquiry regarding spousal incompetency analytically separate from that regarding hearsay:

“It is important to keep the spousal incompetency inquiry analytically distinct from the hearsay inquiry. As explained earlier, the spousal incompetency rule is based on different rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence. Analytically, nothing turns on whether the spousal incompetence inquiry is considered before the hearsay analysis or after when the impact of admitting the evidence may be easier to ascertain. However, when the impact is clear, considering the spousal incompetency issue first may promote judicial economy. The preferred approach will depend on the particular facts. What matters is that the question be answered. (para 64).”

For its part, the minority found that not only was the trial judge’s application of Hawkins appropriate, but that the SCC majority’s Couture opinion was simply too extreme. Rothstein J., speaking for the dissent, was unequivocal when he declared at para. 147:

“In my view, this approach effectively shuts down the admissibility of hearsay statements emanating from spouses because Charron J. is essentially saying that a trial judge should presume harm to all subsisting marriages. This would mean that the only time that the admission of a spouse’s hearsay statements would not — from an objective standpoint — have the potential to disrupt an accused’s marriage is if the couple is irreconcilably separated at the time of the trial, in which case the admission of the spouse’s hearsay statements would be unnecessary in any event because he or she would be competent to testify…”

Ultimately, however, it could be argued that the majority and the minority equally emerge at two polar extremes concerning the relationship between the spousal incompetency rule and those governing hearsay evidence. While Rothstein J. considers the majority’s decision to have gone too far in favour of protecting the policy objectives of the incompetency rule, his response at para 149 stops nothing short of campaigning for the rule’s outright abolishment:

Many courts and commentators have argued that it should be abolished altogether. The authors of The Law of Evidence in Canada, at para. 14.151, for example, say this: “it is submitted that [marital harmony] is not of such a high policy interest so as to warrant the exclusion of relevant, probative evidence bearing on the issues of the case.”

Indeed, according to Rothstein J., it would seem that the policy objectives guiding the preclusion of certain types of evidence within specific circumstances should necessarily play second fiddle to the guiding but vague rationale of a criminal trial: truth seeking.